International Yacht Bureau, Inc. et al v. International Registries, Inc.

Filing 131

ORDER granting 74 Motion for Summary Judgment; denying 76 Motion for Partial Summary Judgment. Signed by Judge Darrin P. Gayles (ahk)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF FLORIDA
Case No. 13-60947-Civ-GAYLES/TURNOFF

INT’L YACHT BUREAU, INC.,
and JACOB DESVERGERS,
Plaintiffs,
vs.
INT’L REGISTRIES, INC.,
Defendant.
_______________________________________/

INT’L REGISTRIES, INC.,
Counter-Plaintiff,
vs.
INT’L YACHT BUREAU, INC.,
JACOB DESVERGERS, and MEGA
YACHT REGISTRY SERVS., INC.,
Counter-Defendants.
_______________________________________/

ORDER GRANTING COUNTER-DEFENDANTS’ MOTION FOR SUMMARY
JUDGMENT AND DENYING DEFENDANT/COUNTER-PLAINTIFF’S MOTION FOR
PARTIAL SUMMARY JUDGMENT
THIS CAUSE came before the Court on Counter-Defendants International Yacht
Bureau, Inc., Jacob DesVergers, and Mega Yacht Registry Services, Inc.’s Motion for Summary
Judgment [ECF No. 74] and Defendant/Counter-Plaintiff International Registries, Inc.’s

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Redacted Motion for Partial Summary Judgment [ECF No. 76]. A hearing on the motions was
held on Friday, August 21, 2015, at which time the Court issued a preliminary ruling and
indicated that this written order would issue. The Court has reviewed the motions and the record
and is otherwise fully advised. For the reasons stated below, the Court GRANTS CounterDefendants’ Motion for Summary Judgment and DENIES Defendant/Counter-Plaintiff’s Motion
for Partial Summary Judgment.

BACKGROUND
Plaintiff Jacob DesVergers (“DesVergers”) brought this action on behalf of himself and
his company, International Yacht Bureau, Inc. (“IYB”), after a business relationship soured
between Plaintiffs and Defendant, International Registries, Inc. (“IRI”). Plaintiff DesVergers and
his company have performed marine inspections of yachts that register under the flags of certain
countries, including the Republic of the Marshall Islands (the “RMI” or “Marshall Islands”) and
Jamaica. Neither the Marshall Islands nor Jamaica is a party to this proceeding.
A.

The Relationship Between IRI and the RMI
The Marshall Islands registers vessels under the RMI Maritime Registry (the “RMI

Registry”) for the purposes of ensuring the safety, inspection, and proper documentation of
vessels registered under its flag, and those ships authorized to fly the flag of the Marshall Islands
then become subject to that country’s laws and regulations. [ECF No. 77 at ¶ 1].1 Defendant IRI
is a Virginia corporation that has conducted business in Ft. Lauderdale, Florida. [ECF No. 54 at ¶
4]. IRI provides administrative and technical support, including the registration of vessels, for the
RMI through IRI’s relationship with The Trust Company of the Marshall Islands, Inc. (“TCMI”),
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For the purposes of outlining this background information, the Court primarily relies upon the parties’ statements
of undisputed material facts, i.e., ECF Nos. 74-1 & 77.

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which is the RMI Maritime Administrator and acts as a governmental arm of the RMI. [ECF No.
77 at ¶ 3]. TCMI is not a party to this proceeding.
B.

The Relationship between Plaintiffs and Defendant
In 2006, TCMI entered into an agreement with Plaintiff IYB, through which IYB would

perform certain certification and safety inspections on RMI-registered vessels. [ECF No. 77 at ¶¶
7–9]. Plaintiff DesVergers, a ship inspector and surveyor, created IYB to perform surveys and
certification services for yachts. [ECF No. 53 at ¶¶ 11–14]. Because of its role in assisting TCMI
in performing its governmental functions for the Marshall Islands, IRI was the primary point of
interaction with IYB. [ECF No. 77 at ¶ 12]. The business relationship between the parties grew
through approximately 2010. [ECF No. 53 at ¶¶ 17–18; ECF No. 77 at ¶ 13]. On February 19,
2013, TCMI terminated its agreement with IYB effective March 1, 2014. [ECF No. 77 at ¶ 14].
C.

The Litigation
Plaintiffs IYB and DesVergers initiated this litigation in March 2013 in Florida state

court, and IRI subsequently removed the action to this Court. [ECF No. 1]. Plaintiffs’ Amended
Complaint alleges claims of Defamation and Tortious Interference with Business Relationships.
[ECF No. 53]. These claims are primarily premised upon alleged statements and interactions
between IRI and yacht owners beginning in 2010 regarding IYB’s yacht services. [Id. at ¶¶ 22–
49].
In its Amended Counterclaims, IRI asserts claims of Tortious Interference with Business
Relationships, Defamation, and Violation of Florida Deceptive and Unfair Trade Practices Act
(“FDUTPA”) against Plaintiffs as well as the additional Counter-Defendant Mega Yacht Registry
Services, Inc. (“Mega Yacht”), a Florida corporation of which DesVergers is the sole
officer/director and president. [ECF No. 54]. In its Amended Counterclaims, IRI alleges, inter

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alia, that Counter-Defendants made intentional misrepresentations regarding the RMI Registry,
encouraged yacht owners to switch their yacht registrations to the Jamaican flag (instead of the
Marshall Islands), and interfered with IRI’s business. [Id. at ¶¶ 28–37]. The parties all filed
motions for summary judgment, claiming that each party was entitled to judgment as a matter of
law regarding the claims against them. [ECF Nos. 74 & 76].

LEGAL STANDARD
Summary judgment “shall be granted if the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the affidavits, if any, show that there is no
genuine issue as to any material fact and that the moving party is entitled to a judgment as a
matter of law.” Allen v. Tyson Foods, Inc., 121 F.3d 642 (11th Cir. 1997) (quoting Fed. R. Civ. P.
56(c)) (internal quotations omitted); Damon v. Fleming Supermarkets of Fla., Inc., 196 F.3d
1354, 1358 (11th Cir. 1999). Thus, the entry of summary judgment is appropriate “against a
party who fails to make a showing sufficient to establish the existence of an element essential to
that party’s case, and on which that party will bear the burden of proof at trial.” Celotex Corp. v.
Catrett, 477 U.S. 317, 322 (1986).
“The moving party bears the initial burden to show the district court, by reference to
materials on file, that there are no genuine issues of material fact that should be decided at trial.”
Clark v. Coats & Clark, Inc., 929 F.2d 604, 608 (11th Cir. 1991). “Only when that burden has
been met does the burden shift to the non-moving party to demonstrate that there is indeed a
material issue of fact that precludes summary judgment.” Id. Rule 56 “requires the nonmoving
party to go beyond the pleadings and by her own affidavits, or by the ‘depositions, answers to
interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine

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issue for trial.’” Celotex, 477 U.S. at 324. Thus, the nonmoving party “may not rest upon the
mere allegations or denials of [her] pleadings, but must set forth specific facts showing that there
is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986) (internal
quotation marks omitted).
“A factual dispute is genuine if the evidence is such that a reasonable jury could return a
verdict for the non-moving party.” Damon, 196 F.3d at 1358. When deciding whether summary
judgment is appropriate, “the evidence, and all inferences drawn from the facts, must be viewed
in the light most favorable to the non-moving party.” Bush v. Houston Cty. Comm’n, 414 F.
App’x 264, 266 (11th Cir. 2011).

DISCUSSION
A.

IYB, DesVergers, and Mega Yacht’s Motion for Summary Judgment is granted as
IRI lacks standing.
Defendant/Counter-Plaintiff IRI lacks standing to bring its claims. The question of

standing is an initial matter that the district court considers with all claims invoking federal
jurisdiction. See Bischoff v. Osceola Cty., Fla., 222 F.3d 874, 877–78 (11th Cir. 2000). “The party
invoking federal jurisdiction bears the burden of proving standing.” Id. at 878. “[W]hen standing
is raised at the summary judgment stage . . . the plaintiff must set forth by affidavit or other
evidence specific facts, . . . which for purposes of the summary judgment motion will be taken to
be true.” Id. (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561 (1992) (internal
quotations omitted). There are three elements required to meet constitutional standing: an injury
in fact, causation, and redressability. Alabama-Tombigbee Rivers Coal. v. Norton, 338 F.3d 1244,
1252 (11th Cir. 2003) (citing Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 102–04
(1998)). The plaintiff’s alleged injury must be traced to the defendant’s conduct, and that
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“showing of traceability must not be too ‘attenuated.’” Id. at 1254 (citing Allen v. Wright, 468
U.S. 737, 757 (1984)). “To establish standing, a litigant ordinarily ‘must assert his own legal
rights and interests’ and cannot assert the rights or interests of someone else.” S.E.C. v. Quest
Energy Mgmt. Grp., Inc., 768 F.3d 1106, 1109 (11th Cir. 2014) (quoting Warth v. Seldin, 422
U.S. 490, 499 (1975)).
In this case, IRI brings three claims against Counter-Defendants that, at their core, regard
the RMI Registry. [ECF No. 54 at ¶¶ 38–52]. As IRI itself presents, the RMI Registry was
created by the RMI Maritime Act “to ensure the safety, inspection, and proper documentation of
ships, yachts, and other vessels registered under the RMI Maritime Registry.” [ECF No. 77 at
¶ 1]. Registration of a vessel with the RMI renders that vessel “subject to RMI law and
regulation.” [Id.]. The Marshall Islands, however, is not a party to this action. IRI, the sole
Counter-Plaintiff here, provides administrative and technical support to TCMI. [Id. at ¶ 4].
According to IRI, TCMI acts as a “governmental arm” of the Marshall Islands. [Id. at ¶ 3]. Many
of IRI’s personnel have been deputized as officers of TCMI. [Id. at ¶ 5]. Accordingly, such
appointments provide IRI personnel government authority to act on behalf of TCMI. Id. TCMI,
however, is not a party to this action. 2
Accordingly, the Court finds that the Defendant/Counter-Plaintiff, IRI, does not have
standing to bring its three claims against the Counter-Defendants because IRI is not the real party
in interest. Any damage or interest that IRI may have related to the purported statements made by
Counter-Defendants is too attenuated. The collateral interest that IRI asserts, because it works to
support the RMI Registry, is not enough to create an interest such that IRI can bring a cause of

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Even if TCMI were a party to this case, it is questionable whether it would have standing because TCMI was hired
by the Marshall Islands to administer the RMI Registry and conduct related business. However, because TCMI is not
a party to this case, the Court need not decide whether TCMI has standing to bring a claim against CounterDefendants at this time.

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action here. To allow IRI to proceed in its claims against Counter-Defendants could negatively
affect the rights and interests of the Marshall Islands and TCMI, neither of which is a party to
this litigation. 3 Therefore, the Plaintiffs/Counter-Defendants’ Motion for Summary Judgment is
granted. 4
B.

Defendant/Counter-Plaintiff’s Motion for Summary Judgment is denied, as there
are genuine issues of material fact.
i.

Plaintiffs have presented admissible evidence in support of their claims.
IRI argues that this Court should grant summary judgment in its favor because Plaintiffs’

claims are based almost entirely on inadmissible hearsay. [ECF. No. 76 at 3]. In supporting its
positions under a Motion for Summary Judgment, a party must support its assertions by
presenting admissible evidence. See Fed. R. Civ. P. 56(c); see also, e.g., Molenda v. Hoechst
Celanese Corp., 60 F. Supp. 2d 1294, 1303–04 (S.D. Fla. 1999), aff’d, 212 F.3d 600 (11th Cir.
2000) (granting summary judgment on the basis that Plaintiff “presented no competent evidence
to meet the first element of his prima facie case”). Plaintiffs respond to IRI’s argument that they
have based their claims on inadmissible hearsay by pointing to admissible evidence in support of
their claims, including emails and the testimony of certain witnesses, including Mr. Feaster, 5 a
former IRI and IYB employee. [ECF No. 98 at 4–8]. In as much as Counts I and II of the
Amended Complaint are not premised entirely on inadmissible hearsay, this initial argument by
IRI fails. 6

3

Notably, the Marshall Islands may very well decide that it is not in its interest to involve itself in a fight with
Jamaica regarding yacht registries. Absent any involvement by the Marshall Islands, the Court declines to proceed
for that reason as well.

4

Because the Court holds that there is no standing, it does not need to address the additional arguments briefed by
IRI and Counter-Defendants.

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However, IRI indicates that Mr. Feaster left IRI prior to all but one of the acts of alleged wrongdoing in the
Amended Complaint, and his personal knowledge of any incidents is unclear. [ECF No. 109 at 5–7].

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As this Court articulated during the parties’ hearing on August 24, 2015, Plaintiffs cannot base their claims solely
on inadmissible evidence, i.e., inadmissible hearsay. Because Plaintiffs have proffered additional evidence beyond

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ii.

The issue of malice is improper to decide by summary judgment where there are
genuine issues of material fact.
IRI further argues that this Court should grant summary judgment in its favor because

Plaintiffs have not shown that the statements by IRI are either defamatory or non-privileged.
[ECF. No. 76 at 6]. Plaintiffs respond that they have provided record evidence of defamatory
statements that are not privileged, including statements by IRI’s former Director, Ryan Rabatin
and IRI’s former employee, Eugene Sweeney. [ECF No. 98 at 8–10]. Additionally, Plaintiffs
argue that there is a question of fact as to whether IRI is entitled to the privilege regarding the
statements. [Id. at 11].
Florida law recognizes a conditional privilege for a statement made by one having an
interest or duty in the subject matter to another person having a corresponding interest or duty,
even if the statement may otherwise be actionable as defamatory. See Nodar v. Galbreath, 462
So. 2d 803, 809–10 (Fla. 1984). In order to overcome the common-law qualified privilege, the
plaintiff must show “express malice,” demonstrating that “the primary motive for the statement
is shown to have been an intention to injure the plaintiff.” Id. at 806. “Express malice” requires a
showing of three elements: ill will, hostility, and evil intention to defame and injure. Boehm v.
Am. Bankers Ins. Grp., Inc., 557 So. 2d 91, 94 (Fla. 3d DCA 1990) (citing Nodar, 462 So.2d at
811). “Even though the speaker’s primary motivation must be express malice to overcome the
privilege in a defamation action[,] in a tortious interference claim, malice must be the sole basis
for the interference.” Id. at 95. (emphasis added)
The elements for finding a conditionally privileged publication are as follows: “1) Good
faith; 2) an interest to be upheld; 3) a statement limited in its scope to this purpose; 4) a proper
inadmissible hearsay, that evidence is viewed in the light most favorable to the non-moving party (i.e., Plaintiffs),
and neither Count I nor Count II of the Amended Complaint can be resolved at this time under IRI’s Motion for
Partial Summary Judgment. However, as previously noted by the Court, hearsay statements by yacht
owners/operators will not be admitted at trial.

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occasion; and 5) publication in a proper manner.” Axelrod v. Califano, 357 So. 2d 1048, 1051
(Fla. 1st DCA 1978) (internal citation omitted) (emphasis added). “If the privilege is conditional
or qualified, and there is sufficient evidence to indicate that the privilege may have been
exceeded or abused, the issue of fact must be submitted to the jury.” Id. at 1052. Under Florida
law, the issue of whether a defendant “has gone beyond its limited and qualified privilege is
generally a question for the trier of fact.” KMS Restaurant Corp. v. Wendy’s Intern., Inc., 361
F.3d 1321, 1325 (11th Cir. 2004) (internal citations omitted). “[E]ven where the defendant’s
motive is not purely malicious, a tortious interference claim may succeed if improper methods
were used.” Id. at 1327.
In ruling on IRI’s Motion for Partial Summary Judgment, this Court must view all the
proffered evidence, and any inferences thereof, in the light most favorable to DesVergers and
IYB. See Bush v. Houston Cty. Comm’n, 414 F. App’x 264, 266 (11th Cir. 2011). The admissible
evidence proffered by Plaintiffs in support of Counts I and II of the Amended Complaint, though
not dispositive, does present genuine issues of material fact regarding the actions of IRI.
Plaintiffs’ Statement of Material Disputed Facts [ECF No. 99], as well as their other filings with
this Court, raise genuine issues that would be improper for the Court to rule upon at this time. 7
Applying the standard for summary judgment, this Court declines to grant Defendant’s motion.

CONCLUSION
Based on the foregoing, it is
ORDERED AND ADJUDGED that Counter-Defendants’ Motion for Summary
Judgment [ECF No. 74] is GRANTED as Defendant/Counter-Plaintiff has no standing to bring

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For example, the motive and intent of the emails and other admissible statements, particularly with regard to
malice, allegedly made by IRI or its agents.

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its claims. It is further
ORDERED AND ADJUDGED that Defendant/Counter-Plaintiff’s Motion for Partial
Summary Judgment [ECF No. 76] is DENIED.
DONE AND ORDERED in Chambers at Miami, Florida this 1st day of September,
2015.

___________________________
Honorable Darrin P. Gayles
United States District Judge

cc:

Magistrate Judge Turnoff
All Counsel of Record

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